Why reassessing those failed by the ‘Fast-Track’ process could save lives: a summary brief

11th December 2018

Introduction:

The Labor Party’s National Policy Platform recognizes that the current refugee status determination (RSD) and review process (‘the Fast-Track Process’) for more than 30,000 people seeking asylum (PSAs) who predominantly arrived by boat between 2012 & 2014 is unfair.

Labor has committed to abolishing the Fast-Track process, reinstate the Refugee Review Tribunal (RRT) in place of the Immigration Assessment Authority (IAA), and permanent protection for all those found to be refugees.

However, the question of what will happen to the thousands of children, women, and men who have already been processed under ‘Fast-Track’ remains unanswered, and Labor’s final policy decision could save thousands of lives.

Our statistics (see below) indicate that more than 8,000 people could be part of this group, with a minimum of 1,500 people at risk of being harmed if returned home.

How the current process can fail refugees:

The ‘Fast-Track’ process was brought in to process more than 30,000 people seeking asylum (PSA) living in the Australian community more efficiently.

As part of this ‘efficiency’ driven process, the IAA was introduced to review Departmental decisions without providing, in the overwhelming majority of cases, applicants with the opportunity to respond to the officer’s doubts about their claim, to provide new information relevant to their case, or appear for a second interview.[1]

The removal of these core tenets of independent review run contrary to standards of procedural fairness legislated applied more broadly in the Australian administrative appeals system.

In particular, it creates an imbalance between the principles of fairness and efficiency because of the way in which the IAA’s limited mandate (eg. exceptional circumstances) is being interpreted in practice.[2]

We know that allowing applicants to present their case afresh a second time is crucial to the integrity of RSD because of the high stakes at play. Moreover interview environments can create significant stress and anxiety; stories are often complex, and re-traumatizing; country situations change in subtle or localized ways.

Assessing an applicant’s credibility is often a crucial element of the DHA officer’s decision and can be inadvertently affected by the subjective nature of face-to-face interaction in the interview room. It often takes more than a single interview with a DHA official for the complexities of cases to reveal themselves and an informed decisions to be made.

The consequences of being twice rejected in the visa application system are manifold.

People in the system are now having to wait more than 2 years for judicial review hearings to adjudicate whether there exists any ‘legal error’ in decisions, and may also be at risk of deportation.

During this period, they are no longer eligible for support service payments (SRSS), and have to survive on short-term Bridging Visas which are seldom recognized by employers.

That these policies be applied to all ‘Fast-Track’ applicants still in the country regardless of status, such that those who have been through the fundamentally unfair IAA have an opportunity for procedural fairness and are not at risk of return to situations of persecution.

Given that there is consensus about the unfairness of the current process, and the need to reform it, it is both morally desirable and logical that the people impacted by the failure of this process have some recourse to procedurally fair reassessment.

Reassessing people and allowing them to live in the community ($40,000 per person per year) in the interim is significantly cheaper than detaining ($239,000 per person per year onshore) or deporting them.

Understanding the data (July 2018)

As of 2 July 2018, 30,947 is the number of people being assessed under the Fast-Track process

18,657 out of 30,947 people have already been processed: (18,657 ÷ 30,947 = 60.28%)

12,290 out of 30,947 people are yet to receive a final decision (12,290 ÷ 30,947 = 39.72%)

13,315 out of 18,657 people have been granted protection visas by DHA: (13,315 ÷ 18,657 = 71.27%)

5,342 out of 18,657 people have been refused by DHA and the IAA: (5,342 ÷ 18,657 = 28.63%)

If the above acceptance (71.27%) and refusal (28.63%) rates are extrapolated and applied to the remaining 12,290 people awaiting assessment:

63% of 12,290 remain people is 3,518: (12,290 × 28.63% = 3,518.627)

If we add 3,518 people to the number already refused, 5,342, we get a total of 8,860 people who will be rejected by DHA and the IAA at the end of the Fast Track process.

In order to estimate many of these people may have been found to be refugees under previous review mechanisms, we can compare current grant/rejection rates with those of the Migration & Review Division of the Administrative Appeals Tribunal (AAT), which reviews DHA decisions for people seeking asylum who did not arrive by boat.

Method 1

The difference in reaffirmation rates between the IAA (92% for boat arrivals) and the AAT (76% for plane arrivals) for the five nationalities with the highest reaffirmation numbers during the period between 18 April 2015 and 27 February 2018 is 16%.[3]

8,860 represents 92% of people referred to the IAA.

This means that the total number of people who will have likely been referred to the IAA (using the same methods of extrapolation above) by the end of the Fast Track process is 9,630 persons: ((8860 x 100) ÷ 92 = 9,630)

If those 9,630 people had been referred to the AAT instead, which has only a 76% reaffirmation rate, only 7,318 people would have been rejected by DHA and IAA at the end of the Fast Track process: (9,630 x 76% = 7,318)

8,860 – 7,318 = 1,542 people

Method 2

The difference in reaffirmation rates between the IAA (68% – 90%) from 2015 to 2018 and the AAT (10% – 40%) from 2009 to 2013, both for people arriving by boat, is approximately 50% – 58%

Taking the two upper range figures – 40% and 90% – from each tribunal using this data, it follows that 8,860 person is now 90% of people referred to the IAA.

This means that the total number of people who will have likely been referred to the IAA (using methods of extrapolation above) by the end of the Fast-Track process is 9,844 persons: (((8860 x 100) ÷ 90 = 9,844)

If those 9,844 people had been referred to the AAT instead, which has only a 40% reaffirmation rate, only 3,937 people would have been rejected by DHA and IAA at the end of the Fast Track process: (9,844 x 40% = 3,937)

8,860 – 3,937 = 4,923 people

[1] According to researchers Emily McDonald and Maria O’Sullivan, only 1.2% of applicants were granted an oral interview at the IAA between 1 July 2015 and 31 December 2017; see Emily McDonald and Maria O’Sullivan, “Protecting Vulnerable Refugees: Procedural Fairness in the Australian Fast Track Regime,” UNSW Law Journal Special Issue on Law and Vulnerability, (forthcoming, September 2018), 1 – 47.

[2] Emily McDonald and Maria O’Sullivan, “Protecting Vulnerable Refugees: Procedural Fairness in the Australian Fast Track Regime,” UNSW Law Journal Special Issue on Law and Vulnerability, (forthcoming, September 2018), 1 – 47.